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LBC Terms and Conditions

 

TERMS AND CONDITIONS OF SUPPLY - LBC PRODUCTS

This document (together with the documents referred to in it) sets out the terms and conditions on which SBS supply the Liquid Based Cytology (LBC) products listed on our website www.healthcare.sourcebioscience.com ("the Website") or which LBC product details have been provided via a quotation to the Buyer.

These terms and conditions apply to LBC products ordered from SBS.

Please read these terms and conditions carefully. The Buyer should understand that by ordering any of our products, the Buyer agrees to be bound by these terms and conditions.

The Buyer should retain a copy of these terms and conditions for future reference.

Please understand that if the Buyer refuses to accept these terms and conditions, the Buyer will not be able to order any products from SBS.

1.         INTERPRETATION

1.1       The following definitions and rules of interpretation apply in these Conditions:

"Buyer"                                the company, academic institution, firm, body or any representative thereof or any other person who orders the LBC Products from SBS;

"Conditions"      the conditions set out below and overleaf;

"Contract"          the contract between SBS and the Buyer for the sale and purchase of the LBC Products incorporating these Conditions;

"Data Sheet"     the manufacturer's unregulated technical data sheet containing information for the end user which might include, by way of example and without limitation, the name of the product, a description of the product, and the products intended use;

"LBC Products"        any batch of products branded, presented or characterised by SBS as Liquid Based Cytology products  agreed in the Contract to be supplied to the Buyer by SBS (including any part or parts of them); and

"SBS"                    Source BioScience UK Limited a company registered in England and Wales under registered number 4078501 and whose registered office is at 1 Orchard Place, Nottingham Business Park, Nottingham, NG8 6PX.

1.2       Any reference in these Conditions to "writing" or cognate expressions includes a reference to facsimile transmission, email or comparable means of communication.

1.3.      The headings are for reference only and will not affect the interpretation of these Conditions.

1.4       SBS reserves the right at any time without liability to correct any clerical, typographical or other similar errors or omissions made by it.

1.5       References to statutes or statutory instruments shall be deemed to be references to those statutes or statutory instruments as the same may be amended or re-enacted from time to time.

2.         APPLICATION OF TERMS

2.1       Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2       No terms or conditions endorsed on, delivered with, referred to or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract.

2.3       These Conditions apply to all SBS's sale of the LBC Products and any variation to these Conditions and any representations about the LBC Products shall have no effect unless expressly agreed in writing and signed by an authorised officer of SBS. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SBS which is not set out in the Contract. Nothing in this Condition shall limit or exclude SBS's liability for fraudulent misrepresentation.

2.4       The Buyer must ensure that the terms of its order (and any applicable specification) are complete and accurate.

2.5          Where provided, any quotation is given on the basis that no Contract shall come into existence until SBS despatches an acknowledgement of order in accordance with these Conditions to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that SBS has not previously withdrawn it.

 

3.         THE BUYER'S STATUS

3.1       Where the Buyer places an order, the Buyer warrants that:

3.1.1      the Buyer is legally capable of entering into binding contracts;

3.1.2      the Buyer is at least 18 years old;

3.1.3      where the Buyer is ordering on behalf of a third party, the Buyer has the authority to enter into the Contract.

4.         HOW THE CONTRACT IS FORMED

4.1       The Buyer shall provide SBS with an order for the LBC Products.

4.2          each order or acceptance of a quotation for the LBC Products by the Buyer from SBS shall be deemed to be an offer by the Buyer to buy the LBC Products subject to these Conditions; and

4.3          no order placed by the Buyer shall be deemed to be accepted by SBS until a written acknowledgement of order is issued by SBS or (if earlier) SBS delivers the LBC Products to the Buyer.

5.         LIMITED WARRANTY LBC PRODUCTS

5.1       SBS warrants that for a period of SIX (6) MONTHS after the date of dispatch, all LBC Products sold by SBS to Buyer shall, under normal use, materially conform with SBS's published specifications or, where none, normal industry standards for such LBC Products as of the date of dispatch of the LBC Products and shall be free from manufacturing and material defects. Defective LBC Products will be replaced at no charge during such 6-month period, provided that the LBC Products are stored and maintained in accordance with applicable instructions.

 

6.         DELIVERY

6.1       Unless otherwise agreed in writing by SBS, delivery of the LBC Products shall take place at the Buyer's place of business.

6.2       Any dates specified by SBS for delivery of the LBC Products are intended to be an estimate only and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery will take place within a reasonable time.

6.3       Subject to the other provisions of these Conditions, SBS shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the LBC Products (even if caused by SBS's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.

6.4       SBS shall be responsible for any damage or loss in transit, provided that the Buyer notifies the damage or loss to SBS (or its carrier, if applicable) within three days of delivery of the LBC Products and, that the LBC Products have been handled in accordance with SBS's stipulations. Any remedy under this Condition 6.4 shall be limited, at the option of SBS, to replacing any of the LBC Products which are proven to SBS's satisfaction to have been lost or damaged in transit or issuing a credit note at the pro-rata Contract rate against any invoice raised for such LBC Products.

6.5       If for any reason the Buyer fails to accept delivery of any of the LBC Products when they are delivered, or SBS is unable to deliver the LBC Products on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

6.5.1      risk in the LBC Products shall pass to the Buyer (including for loss or damage caused by SBS's negligence);

6.5.2      the LBC Products shall be deemed to have been delivered; and

6.5.3      SBS may store the LBC Products until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

6.5.4      SBS may sell the LBC Products at the best price readily obtainable and (after deduction of all costs and expenses referred to in clause 6.5.3 above and selling expenses) account to the Buyer of the excess over the price under the Contract or charge the Buyer for any shortfall below the price in the Contract.

6.6       SBS may deliver the LBC Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

6.7       Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

7.         NON-DELIVERY

7.1       The quantity of any consignment of LBC Products as recorded by SBS on despatch from SBS's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

7.2       SBS shall not be liable for any non-delivery of LBC Products (even if caused by SBS's negligence) unless the Buyer gives written notice to SBS of the non-delivery within ten days of the date when the LBC Products would in the ordinary course of events have been received.

7.3       Any liability of SBS for non-delivery of the LBC Products shall be limited to replacing the LBC Products within a reasonable time or issuing a credit note at the pro-rata Contract rate against any invoice raised for such LBC Products.

8.         RISK AND TITLE

8.1       The LBC Products are at the risk of the Buyer from the time of delivery.

8.2       Ownership of the LBC Products shall not pass to the Buyer until SBS has received in full (in cash or cleared funds) all sums due to it in respect of:

8.2.1      the LBC Products; and

8.2.2      all other sums which are or which become due to SBS from the Buyer on any account.

8.3       SBS shall be entitled to recover payment for the LBC Products notwithstanding that ownership of any of the LBC Products has not passed from SBS.

8.4       On termination of the Contract, howsoever caused, SBS's (but not the Buyer's) rights contained in this Condition 8 shall remain in effect.

9.         PRICE

9.1       Unless otherwise agreed in writing by SBS, the price for the LBC Products shall be the price set out in SBS's price list published on the date that the order shall be deemed to be accepted by SBS (except in the case of obvious manifest error).

9.2       The price for the LBC Products shall be exclusive of any value added tax, all currency and banking charges applicable to the payment method used and all costs or charges in relation to loading, unloading, carriage and insurance (including, without limitation, any import duties or taxes), packaging and dry ice all of which amounts the Buyer shall pay in addition when it is due to pay for the LBC Products.

9.3       The Website contains a large number of products and services and it is always possible that, despite SBS's best efforts, some of the LBC Products listed on the Website may be incorrectly priced. SBS will normally verify prices as part of its dispatch procedures so that, where a correct price is less than SBS's stated price, SBS will charge the lower amount. If a correct price is higher than the price stated on the Website, SBS will normally, at its discretion, either contact the Buyer for instructions before performing the Contract, or reject the Buyer's order and notify it of such rejection.

9.4       SBS is under no obligation to sell the LBC Products to the Buyer at the incorrect (lower) price, even after SBS has sent the Buyer a Dispatch Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Buyer as a mispricing.

9.5       SBS reserves the right to increase the price of the LBC Products to reflect increases in the cost to SBS which is due to a factor beyond its control.

10.       PAYMENT

10.1     Subject to Condition 10.4, payment of the price for the LBC Products is due in such currency as the parties shall from time to time agree within 30 days of receipt of an invoice from SBS.

10.2     Time for payment shall be of the essence.

10.3     Payment may be made by credit or debit card, bank transfer or by cheque. No payment shall be deemed to have been received until SBS has received cleared funds.

10.4     All payments payable to SBS under the Contract shall become due immediately on its termination despite any other provision.

10.5     The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by SBS to the Buyer.

10.6     If the Buyer fails to pay SBS any sum due pursuant to the Contract:

10.6.1    the Buyer shall be liable to pay interest to SBS on such sum from the due date for payment at the rate of 5% above the base lending rate of National Westminster Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment; and

10.6.2    SBS may cancel the Contract or suspend any further deliveries to the Buyer.

11.       LBC PRODUCTS AND THE BUYER'S OBLIGATIONS

11.2     The Buyer shall (and shall procure that its agents and employees shall):

 

11.2.5    obtain in advance all necessary licenses, authorisations and permits required for possession of, and use of, the LBC Products; and

11.2.6    use the LBC Products in accordance with any instructions provided within Data Sheets or any instructions, training or guidance provided by SBS to Buyer as applicable and shall in any event comply with any industry standard guidelines on use..

11.3     SBS will not be liable for any breach by the Buyer (or any of the Buyer's agents or employees) of any applicable laws and regulations of the country in which the LBC Products are used.

11.4     The Buyer must immediately notify SBS in the event that the Buyer becomes aware of any breach in connection with the Contract.

11.5     The Buyer shall indemnify SBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by SBS arising out of or in connection with:

11.5.1    any breach of the warranties contained in Condition 11.2;

11.5.2    the Buyer's (or the Buyer's agents or employees') breach or negligent performance or non-performance of the Contract;

11.5.3    any claim made against SBS by a third party arising out of or in connection with the supply of the LBC Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Buyer (or any of the Buyer's agents or employees); and

11.5.4    any claim made against SBS by a third party for death, personal injury or damage to property arising out of or in connection with defective LBC Products, to the extent that the defect in the LBC Products is attributable to the acts or omissions of the Buyer (or of the Buyer's agents or employees).

11.6     The indemnity in Condition 11.5 shall apply whether or not SBS have been negligent or at fault.

11.7     If any third party makes a claim, or notifies an intention to make a claim, against SBS which may reasonably be considered likely to give rise to a liability under Condition 11.5 ("a Claim"), SBS shall:

11.7.1    as soon as reasonably practicable, give written notice of the Claim to the Buyer, specifying the nature of the Claim in reasonable detail;

11.7.2    not make any admission of liability, agreement or compromise in relation to the Claim without the Buyer's prior written consent (such consent not to be unreasonably conditioned, withheld or delayed), provided that SBS may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Buyer, but without obtaining the Buyer's consent) if SBS reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;

11.7.3    give the Buyer and the Buyer's professional advisers access at reasonable times (on reasonable prior notice) to SBS's premises and SBS's officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within SBS's power or control, so as to enable the Buyer and the Buyer's professional advisers to examine them and to take copies (at the Buyer's expense) for the purpose of assessing the Claim; and

11.7.4    subject to the Buyer providing SBS security to SBS's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Buyer may reasonably request to avoid, dispute, compromise or defend the Claim.

12.       QUALITY

12.1     SBS warrants that (subject always to the other provisions of these Conditions) on delivery the LBC Products shall:

12.1.1    be of satisfactory quality; and

12.1.2    subject always to clause 11.2, be reasonably fit for any particular purpose for which the LBC Products are being bought, provided that the Buyer had made known that purpose to SBS in writing and SBS has confirmed that it is reasonable for the Buyer to rely on the skill and judgment of SBS;

12.2     SBS shall not be liable for a breach of any of the warranties in Condition 12.1 unless:

12.2.1    the Buyer gives written notice of the defect to SBS and, if the defect is as a result of damage in transit, within five days of the time the Buyer discovers or ought to have discovered the defect and for any other defect, within a reasonable time of discovery by the Buyer; and

12.2.2    SBS is given a reasonable opportunity after receiving the notice of examining such LBC Products and the Buyer (if asked to do so by SBS) returns such LBC Products to SBS's place of business at SBS's cost for the examination to take place there.

12.3     SBS shall not be liable for a breach of any of the warranties in Condition 12.1 if:

12.3.1    the Buyer (or any of its agents or employees) makes any further use of such LBC Products after giving such notice; or

12.3.2    the defect arises because the Buyer (or any of the Buyer's agents or employees) failed to follow:

12.3.2.1     SBS's oral or written instructions (where provided);

12.3.2.2     the instructions set out in the relevant Data Sheet(s) (if any); and

12.3.2.3     the relevant product information set out on the Website as to any of, the storage, installation, use or maintenance of the LBC Products.

12.4     Subject to Conditions 12.2 and 12.3, if any of the LBC Products do not conform with any of the warranties in Condition 12.1, SBS shall at its own option replace such LBC Products or refund the price of such LBC Products at the pro rata Contract rate provided that, if SBS so requests, the Buyer shall, at SBS's expense, return the LBC Products.

12.5     SBS will not be liable for a breach of any of the warranties in Condition 12.1 where and to the extent that a defect arises as a result of the Buyer's (or the Buyer's agents or employees') negligence.

12.6     If SBS complies with Condition 12.4 SBS shall have no further liability (in contract, tort (including, without limitation, negligence) or otherwise) for breach of any of the warranties in Condition 12.1 in respect of such LBC Products.

12.7     SBS's obligations to replace the LBC Products or refund the price of such LBC Products under Condition 12.4 shall not apply to any replacement LBC Products supplied by SBS.

13.       LIMITATION OF LIABILITY

13.1     Subject to Conditions 13.2, 13.3 and 13.4, the following provisions set out the entire liability of SBS (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Buyer in respect of:

13.1.1   any breach of these Conditions;

13.1.2   any use made or resale by the Buyer of any of the LBC Products, or of any product incorporating any of the LBC Products; and

13.1.3   any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.

13.2     All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

13.3     Nothing in these Conditions excludes or limits the liability of SBS:

13.3.1   for death or personal injury caused by SBS's negligence;

13.3.2   under section 2(3), Consumer Protection Act 1987;

13.3.3   for any matter which it would be illegal for SBS to exclude or attempt to exclude its liability; or

13.3.4   for fraud or fraudulent misrepresentation.

13.4     Subject to Conditions 13.2 and 13.3:

13.4.1   SBS's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

13.4.2   SBS shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the supply or use of the LBC Products (including, without limitation, use of the LBC Products in conjunction with any other LBC Products, materials or products of any kind).

 

14.       TERMINATION

14.1     Without prejudice to the foregoing, SBS may terminate the Contract immediately if:

14.1.1    the Buyer fails to pay the price on the due date;

14.1.2    the Buyer is in breach of any term of the Contract and has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;

14.1.3    there is a material change in the ownership or control of the Buyer; or

14.1.4    the Buyer is wound up or becomes insolvent or has a receiver or administrative receiver appointed or suffers the appointment or the presentation of a petition for the appointment of an administration or any equivalent or analogous event occurs in any other jurisdiction.

14.2     The termination of the Contract (howsoever arising) will be without prejudice to any rights and remedies which may have accrued to either party.

14.3     Any Conditions which impliedly have effect after termination or expiry will continue to be enforceable notwithstanding termination or expiry.

14.4     On termination of the Contract for any reason:

14.4.1    the Buyer shall immediately pay to SBS all of SBS's outstanding unpaid invoices and interest and, in respect of LBC Products supplied but for which no invoice has been submitted, SBS may submit an invoice, which shall be payable immediately on receipt; and

14.4.2    the provisions of clause 6.6 shall apply.

15.       ASSIGNMENT

15.1     SBS may assign the Contract or any part of it to any person, firm or company.

15.2     The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of SBS.

16.       FORCE MAJEURE

16.1     SBS reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the LBC Products ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of SBS including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. SBS's performance under any Contract is deemed to be suspended for the period that the event in question continues, and SBS will have an extension of time for performance for the duration of that period.

17.       DATA PROTECTION

17.1     SBS agrees that it shall only process the Buyer's personal data (as defined in the Data Protection Act 1998 ("DPA"), and all regulations, codes of practice and guidance notes made under the DPA and all subsequent amending or secondary legislation or orders) for the purposes of performing its obligations under the Contract and SBS will at all times process the Buyer's personal data in accordance with the DPA and will take all reasonable security measures as are required to ensure SBS's compliance with the DPA.

18.       GENERAL

18.1     Each right or remedy of SBS under the Contract is without prejudice to any other right or remedy of SBS whether under the Contract or not.

18.2     If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

18.3     Failure or delay by SBS in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

18.4     Any waiver by SBS of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

18.5     The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

18.6     These Conditions and any document expressly referred to in them represent the entire agreement between the parties in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between SBS and the Buyer, whether oral or in writing.

18.7     The parties each acknowledge that, in entering into the Contract, neither of them has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between them prior to such Contract except as expressly stated in these Conditions.

18.8     Neither party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these Conditions.

18.9     SBS has the right to revise and amend these Conditions from time to time. The Buyer will be subject to the policies and Conditions in force at the time that it orders LBC Products from SBS, unless any change to those policies or these Conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by the Buyer), or if SBS notifies the Buyer of the change to those policies or these Conditions before SBS sends the Buyer the Dispatch Confirmation (in which case SBS has the right to assume that the Buyer has accepted the change to the Conditions, unless the Buyer notifies SBS to the contrary within seven working days of receipt by the Buyer of the Dispatch Confirmation).

18.10   This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.

19.       COMMUNICATIONS

19.1     Applicable laws require that some of the information or communications SBS sends to the Buyer should be in writing. When placing orders through the Website, the Buyer accepts that communication with SBS will be mainly electronic. SBS will contact the Buyer by e-mail or provide it with information by posting notices on the Website. For contractual purposes, the Buyer agrees to this electronic means of communication and acknowledges that all contracts, notices, information and other communications that SBS provides to the Buyer electronically comply with any legal requirement that such communications be in writing. This condition does not affect the Buyer's statutory rights.

19.2     All notices given by the Buyer to SBS must be given to SBS at enquiries@sourcebioscience.com. SBS may give notice to the Buyer at either the e-mail or postal address the Buyer provides to SBS when placing an order, or in any of the ways specified in clause 19.4 above. Notice will be deemed received and properly served immediately when posted on the Website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

January 2012